Every year, US Immigration and Customs
Enforcement (ICE) detains hundreds of thousands of immigrants, including legal
permanent residents, refugees, and undocumented persons, while their asylum or
deportation cases move through the immigration courts. Detainees can be held
for anywhere from a few weeks to a few years while their cases proceed. With
close to 400,000 immigrants in detention each year, space in detention centers,
especially near cities where immigrants live, has not kept pace. In addition, ICE
has built a detention system, relying on subcontracts with state jails and
prisons, which cannot operate without shuffling detainees among hundreds of
facilities located throughout the United States.

As a result, most detainees will be loaded at
some point during their detention onto a government-contracted car, bus, or
airplane and transferred from one detention center to another: 52 percent of
detainees experienced at least one such transfer in 2009. And numbers
are growing: between 2004 and 2009, the number of transfers tripled. In total,
some 2 million detainee transfers occurred between 1998 and 2010.

This report updates Human Rights Watch’s
2009 report, Locked Up Far Away, with recent data analysis that tracks
the beginning and ending points of each immigrant’s detention odyssey
from 1998-2010. It shows that over 46 percent of transferred detainees were moved at
least two times, with 3,400 people transferred 10 times or more. One egregious
case involved a detainee who was transferred 66 times. On average, each
transferred detainee traveled 370 miles, and one frequent transfer route
(between Pennsylvania and Texas) covered 1,642 miles. Such long-distance and
repetitive transfers have dire consequences for immigrants’ rights to
fair immigration proceedings. They can render attorney-client relationships
unworkable, separate immigrants from the evidence they need to present in
court, and make family visits so costly that they rarely—if
ever—occur.

Few Americans or their elected representatives
grasp the full scope of immigration detention in the US. Even fewer are aware
of the chaos that ensues when immigrant detainees are moved around, sometimes
repeatedly, between distant detention centers at great cost to themselves,
their families, and US taxpayers.

Human Rights Watch estimates that the transportation
costs alone for the 2 million transfers that occurred in the 12 years covered
by this report amounted to US$366 million. However, transferred detainees spend
on average more than three times longer in detention than immigrants who are
not transferred, suggesting that the most significant financial costs may come
from court delays and unnecessarily long periods of detention.

Detainee transfers, a seemingly mundane aspect
of the widespread detention of immigrants in the US, happen so regularly and
across such large distances they raise serious human rights concerns that
intensify as transfers become more common and happen repeatedly to the same
person. Indeed, several important rights are being lost in the shuffle,
including:

The right to access an
attorney at no cost to the government: Under US and
international human rights law, detained immigrants have the right to have an
attorney of their choice represent them in deportation hearings, at no cost to
the US government. Immigrants have a much better chance of finding a low-cost
attorney when they stay close to their communities of origin. Once transferred,
many volunteer or pro bono attorneys must withdraw from a case because
representation across such large distances becomes impossible. In addition,
many detainees cannot find an attorney prior to transfer. Their chances of
securing representation are often worse in their new locations: the largest
numbers of interstate transfers go to Louisiana, Mississippi, and Texas, states
that collectively have the worst ratio of transferred immigrant detainees to
immigration attorneys in the country (510 to 1).

Curtailing the ability of
detainees to defend their rights: Under US and
international human rights law, detained immigrants have the right to present
evidence in their defense. But when they are transferred, immigrants are often
so far away from their evidence and witnesses that their ability to defend
themselves in deportation proceedings is severely curtailed. One transfer is
enough to wreak havoc on a detainee’s ability to defend his rights in
court.

Undermining the fairness
with which detainees are treated: Fairness is at stake
when detainees are transferred from one jurisdiction with laws that are more
protective of their rights, to another where the laws are more hostile. The Federal
Court of Appeals for the Fifth Circuit (covering Louisiana, Mississippi, and
Texas) has jurisdiction over the largest number of detainees (about 175,000) transferred
between states. These transfers are of particular concern because that court is
widely known for decisions that are hostile to non-citizens.

Impeding detainees’
ability to challenge detention: International human
rights and US law require that persons deprived of their liberty should be able
to challenge the lawfulness of their detentions. Transfers often occur before a
detainee has had a bond hearing, where a court determines whether detention is
necessary in a particular case. One of the primary methods by which a detainee
can show he should be released from detention is presenting evidence of family
relationships and community ties that will not make him a risk of flight from
court. But after transfer detainees are often so far away from such witnesses
that they cannot convince the court of their intentions to cooperate with
immigration authorities and appear for their hearings. Transferred detainees
spend on average three times longer in detention than those who are never
transferred, and they are less likely to prevail in their bond hearings.

ICE’s current internal policy on
transfers, called the Performance Based National Detention Standards (PBNDS),
states that “the determining factor in deciding whether or not to
transfer a detainee is whether the transfer is required for [ICE’s]
operational needs.”[1]According to ICE, any limits on its power to transfer detainees would
curtail its ability to make the best and most cost-effective use of the
detention beds it can access nationwide.

Even so, starting in October 2009, ICE
has announced several reforms intended to alleviate some causes and
manifestations of immigrant detainee transfers, including moving towards a more
“civil” detention system that decreases reliance on subcontracting
with state jails and prisons, locating facilities in regions where they are
needed, and reducing transfers.[2]

In a time of fiscal challenges, the efficiency
concerns expressed by ICE are important but should not come at the expense of
basic human rights. This is especially true for detainees with attorneys to
consult, defenses to mount in their deportation or asylum hearings, and witnesses
and evidence to present at trial. Some detainees may not have such issues at stake.
But for those who do, the US government and its immigration enforcement agency must
act with restraint.

Moreover, with the exception of ICE’s plans to expand
bed space in a criminal jail and residential facility in New Jersey, such
reforms have yet to be implemented. Nor have they curbed the rising tide of
detainee transfers. Even the New Jersey plans rely heavily on an existing state
criminal jail and criminal residential facilities, which has long been
associated with increased transfers: as the state’s need to house
criminal inmates ebbs and flows, immigrant detainees are shuffled around
accordingly. In fact, data in this report show that most (57 percent) detainee transfers
occur to and from such subcontracted state jails and prisons. Such jails and
prisons are not under the direct management of ICE, which means that the agency
has less control over the conditions in which immigrants are held, and less
ability to resist when a state jail warden asks that detainees be transferred
out.[3]

Despite its
stated intention to alter its reliance upon detainee transfers, ICE has also so
far rejected recommendations to place regulatory or legislative constraints on
its transfer power.

Some transfers are
inevitable: any governmental authority that holds people in custody,
particularly one responsible for detaining hundreds of thousands of people in hundreds
of institutions, will sometimes need to transport detainees between facilities.
For example, inmate transfers are relatively common, even required, in state
and federal prisons to minimize overcrowding, respond to medical needs, or
properly house inmates according to their security classifications.

However, transfers in state and federal prisons
are much better regulated and rights-protective than transfers in the civil
immigration detention system, where there are few, if any, checks on the
decisions of officials to move detainees. The different ways in which the US
criminal justice and immigration systems treat transfers is doubly troubling
because immigration detainees, unlike prisoners, are technically not being
punished.

In addition, while any plan to reduce transfers will
undoubtedly require better allocation of detention space near the locations
where immigrants are apprehended, there are also good reasons to use
alternatives to detention and avoid curtailing liberty whenever possible.
Reducing detainee transfers is not justification for increasing overall numbers
of detainees.

As an agency charged with enforcing the laws
of the United States, ICE should not operate a system of detention that is
completely dependent upon widespread, multiple, and long-distance transfers: in
other words, it should not rely on a system of detention that violates
detainees’ rights. If ICE worked to emulate the best practices on inmate
transfers set by state and federal prison systems, it would reduce the chaos
and limit harmful rights abuses.

Transfers do not need to stop entirely in
order for ICE to uphold US and human rights law: they merely need to be
curtailed through the establishment of enforceable guidelines, regulations, and
reasonable legislative restraints imposed by the US Congress. In a time of
budget constraints, if state and local prisons can handle inmate transfers
without putting basic rights to fair treatment at risk, the federal government
ought to be able to do the same.

II. Recommendations

To the United States Congress

Place reasonable checks on the transfer
authority of Immigration and Customs Enforcement (ICE) by amending the
Immigration and Nationality Act to require that the Notice to Appear be filed
with the immigration court nearest to the location where the non-citizen is
arrested and within 48 hours of his or her arrest, or within 72 hours in
exceptional or emergency cases.

To the Assistant Secretary for Immigration and Customs Enforcement (ICE)

Promulgate regulations requiring ICE
detention officers and trial attorneys to file the Notice to Appear with the
immigration court nearest to the location where the non-citizen is arrested and
within 48 hours of his or her arrest, or within 72 hours in exceptional or
emergency cases.

Promulgate regulations prohibiting transfer
until after detainees have a bond hearing.

Reduce transfers of immigration detainees
by:

Building new detention facilities or
contracting for new detention bed space in locations close to places with large
immigrant populations, where most immigration arrests occur.

Ensuring that new detention facilities are under
ICE’s full operational control so that the agency is not obliged to
transfer detainees from sub-contracted local prisons or jails whenever the
facility so requests.

Requiring use of alternatives to detention such
as monitoring of released detainees when and where possible.

Address deprivation of access to counsel
that is caused by transfers by:

Building new detention facilities or
contracting for new immigration detention bed space in locations where there is
a significant immigration bar or legal services community.

Revising the 2008 Performance Based National
Detention Standards (PBNDS) to require ICE/Detention and Removal Operations (ICE/DRO)
to refrain from transferring detainees who are represented by local counsel,
unless ICE/DRO determines that: (1) the transfer is necessary to provide
adequate medical or mental health care to the detainee; (2) the detainee
specifically requests such a transfer; (3) the transfer is necessary to protect
the safety and security of the detainee, detention personnel, or other
detainees located in the pre-transfer facility; or (4) the transfer is
necessary to comply with a change of venue ordered by the Executive Office for
Immigration Review.

Amending the “Detainee Transfer
Checklist” appended to the PBNDS to include a list of criteria that
ICE/DRO must consider in determining whether a detainee has a pre-existing
relationship with local counsel, and requiring that ICE/DRO record one or more
of the four reasons enumerated above for transfer of a detainee with retained
counsel and communicate the reason(s) to that counsel.

Reinstating the prior transfer standard that
required notification to counsel “once the detainee is en route to the
new detention location,” and require that all such notifications are
completed within 24 hours of the time the detainee is placed in transit.

Amending the Detainee Transfer Checklist appended
to the PBNDS to include a list of criteria that ICE/DRO must consider in order
to determine whether a detainee has received a bond hearing, or has been found
ineligible for such a hearing by an immigration judge, or has consented to
transfer without such a hearing.

Pursuing placement of the detainee in
alternative to detention programs prior to transfer.

Reduce interference with detainees’
capacity to defend against deportation caused by transfers by:

Revising the PBNDS to require ICE/DRO to
refrain from transferring detainees who have family members, community ties, or
other key witnesses present in the local area, unless ICE/DRO determines that:
(1) the transfer is necessary to provide medical or mental health care to the
detainee; (2) the detainee specifically requests such a transfer; (3) the
transfer is necessary to protect the safety and security of the detainee, detention
personnel, or other detainees located in the pre-transfer facility; or (4) the
transfer is necessary to comply with a change of venue ordered by the Executive
Office for Immigration Review.

Amending the Detainee Transfer Checklist
appended to the PBNDS to include designation of one or more of the four reasons
enumerated above for transferring detainees away from family members, community
ties, or other key witnesses present in the local area.

Ensure that transfer of detainees does not
interfere with the ability of counsel and family members to communicate with
detainees by:

Revising the PBNDS to provide that if a
detainee who has been transferred is unable to make a telephone call at his or
her own expense within 12 hours of arrival at a new location, the detainee is
permitted to make a domestic telephone call at the federal government’s
expense.

Improve agency accountability and management
practices, as well as accurate accounting of operational costs involved in
transfers by:

Requiring detention operations personnel to
promptly enter the date of transfer, originating facility, receiving facility,
reasons for transfer, and counsel notification into the Deportable Alien
Control System, or any successor system used by ICE to track the location of detainees.

Including costs associated with
inter-facility transfers of detainees as a category distinct from transfers
made to complete removals from the US in the agency’s annual financial
reporting.

To the Assistant Secretary for ICE, and the Director of the Office of
Refugee Resettlement (ORR)

Address interference with
counsel and other detrimental legal outcomes caused by the transfers of
unaccompanied minors by:

Providing age-appropriate Office of Refugee
Resettlement (ORR) facilities for all unaccompanied minors near their counsel
or in locations where there is access to counsel, and, in the case of
unaccompanied minors who have resided in the US for longer than one year, near their
former place of residence in the US.

To the Executive Office for Immigration Review

Issue guidance for immigration judges
requiring them to allow appearances by detainees’ counsel via video or
telephone whenever a detainee has been transferred away from local counsel,
family members, community ties, or other key witnesses.

Issue guidance for immigration judges that
prioritizes in-person testimony, but when such testimony is not possible,
requires judges to allow video or telephonic appearances by detainees
themselves, family members, and other key witnesses. Any decision to disallow
these types of appearances should be noted on the record along with the reason
for the decision.

Issue guidance requiring immigration judges
who are considering change of venue motions to weigh whether a requested change
of venue would result in a change in law that is unfavorable to the detainee.

Maintain statistics on the total number of
motions to change venue filed by the government versus those filed by
non-citizens, and the number granted in each category.

Issue guidance for immigration judges that
strongly discourages them from changing venue away from a location where the
detainee has counsel, family members, community ties, or other key witnesses,
unless the detainee so requests or consents, or unless other justifications
exist for such a motion apart from ICE agency convenience. Such guidance should
also encourage changes of venue to locations where the detainee has counsel, family
members, community ties, or other key witnesses.

III. Background

ICE
Internal Policy on Transfers

As an agency responsible for the custody and
care of hundreds of thousands of people, it is clear that ICE will sometimes need
to transfer immigrant detainees. The question is whether all or most of the
2.04 million transfers that have occurred over the past 12 years were truly
necessary, especially in light of how transfers interfere with
immigrants’ rights to access counsel and to fair immigration procedures.

While ICE has repeatedly indicated willingness
to reduce its reliance on transfers, it has not made any official policy
changes to translate those intentions into reality—other than a plan to
increase immigration bed space at criminal facilities in Essex, New Jersey.[4]And the agency has remained staunchly opposed to placing
regulatory or legislative checks on its transfer power, which would be
enforceable through the courts.[5]

In August 2009 ICE announced a range of policy
reforms intended to shift away from the punitive model for immigration
detention towards a more “civil” system. The agency indicated its
intention to:

…move away from our present
decentralized, jail-oriented approach to a system wholly designed for and based
on ICE’s civil detention authorities. The system will no longer rely
primarily on excess capacity in penal institutions. In the next three to five
years, ICE will design facilities located and operated for immigration
detention purposes.[6]

A report issued in October 2009 amplified the
rationales for ICE detention reform. In that report, Special Advisor to ICE Dora
Schriro recommended that “[d]etainees who are represented by counsel should
not be transferred outside the area unless there are exigent health or safety
reasons, and when this occurs, the attorney should be notified promptly.”[7]

While many organizations concerned about immigration
detention welcomed such recommendations, ICE made no internal policy reforms in
line with these statements that would stem the tide of detainee transfers.

In December 2009 Human Rights Watch published Locked
Up Far Away, which documented 1.6 million transfer movements of immigrant
detainees. We intensified advocacy efforts with ICE, asking it to impose some
reasonable limits on the transfers of immigrant detainees by changing the
agency’s internal policies on transfers. While enforceable regulatory or
legislative checks on the use of transfers would be the most protective
solutions to this problem, ICE has refused to promulgate enforceable
regulations on detention conditions and operations.[8]Congress has not acted either. We therefore pressed ICE to
make internal policy reforms to its PBNDS.

On February 22, 2010, three months after
publication of Locked Up Far Away, ICE wrote to Human Rights Watch
announcing the agency’s intention to “minimize the number of
detainee transfers to the greatest extent possible.”[9] The agency
made similar announcements in various meetings with advocates around the
country, suggesting that it would reduce its reliance on transfers.
Subsequently, in July 2010, ICE implemented an important reform for transferred
detainees: it established an online detainee locator system.[10]This
reform was recommended in our previous report and had been a chief goal of
immigrants’ rights advocates around the country for years. Before,
attorneys and family members would spend stressful hours and days searching for
clients and loved ones after a transfer. This online system now allows
detainees to be located relatively quickly, and is an important
rights-protective achievement for ICE. However, while detainees can now be
located more readily, we remain concerned that the agency has still not made
any formal internal policy changes aimed at reducing detainee transfers, other
than repeatedly announcing its intention to do so.

Therefore, with the assistance of the Transactional
Records Access Clearinghouse at Syracuse University (TRAC), we filed a
follow-up request for data about detainee transfers under the Freedom of
Information Act (FOIA) in February 2010. We specifically requested data that
would allow us to determine the starting and ending location for each
transferred detainee. In November 2010 we received data from ICE in response to
our request.

As we commenced analyzing data, we continued
to press ICE to change its policies on detainee transfers. In November 2010 we
wrote to ICE and to the labor union representing government workers in
detention centers, after ICE alleged that contract bargaining issues with the
union were delaying improvements to ICE’s detainee transfer policies.[11]

Subsequently, in February 2011, we wrote to
Secretary of Homeland Security Janet Napolitano to ask for an improved policy
on transfers. While ICE continues to signal that improvements to its internal
transfer policies are forthcoming, almost two years after the initial promise
of reform, no significant policy changes have been made.

The Impact of
Transfers on Detainees’ Rights

The current US
approach to immigration detainee transfers interferes with several important
detainee rights. To understand the conditions immigration detainees face, it is
instructive to compare their situation to that of federal and state prisoners.

In the US criminal
justice system, pretrial detainees enjoy the right, protected by the Sixth
Amendment to the US Constitution, to face trial in the jurisdiction in which
their crimes allegedly occurred.[12]Immigrant detainees
enjoy no comparable right to face deportation proceedings in the jurisdiction
in which they are alleged to have violated immigration law, and are routinely
transferred far away from key witnesses and evidence in their trials. In all
but rare cases, a transfer of a criminal inmate occurs once an individual has
been convicted and sentenced and is no longer in need of direct access to his
attorney during his initial criminal trial. Immigrant detainees can be, and
often are, transferred away from their attorneys at any point in their
immigration proceedings.

Immigrant detainees,
unlike criminal defendants, have no right to a court-appointed attorney. In
2010, 57 percent of non-citizens appeared in immigration court without counsel.[13]In
some urban areas, immigrants can benefit from an active cadre of attorneys
willing to represent them at low or no cost, in other words on a pro bonobasis.
While it is beyond this report’s scope to draw a direct causal
relationship between transfers of detainees and their inability to secure
counsel to represent them in immigration court, it is clear that detainees are
often transferred hundreds or thousands of miles from families and home
communities before they have been able to secure legal representation.

Almost invariably,
there are fewer prospects for finding an attorney in the remote locations to
which they are transferred. Our data analysis shows that detainees are
transferred, on average, 369 miles, with one frequent transfer pattern crossing
1,642 miles. Detainees transferred long distances must therefore often go
through the entire complex process of defending their rights in immigration
court without legal counsel.[14] One detainee told Human Rights Watch:

In New York when I was detained, I was about to
get an attorney through one of the churches, but that went away once they sent
me here to New Mexico.... All my evidence and stuff that I need is right there
in New York. I've been trying to get all my case information from New York ...
writing to ICE to get my records. But they won't give me my records; they
haven't given me nothing. I'm just representing myself with no evidence to
present.[15]

A detainee who was
transferred 1,400 miles away to a detention facility in Texas after a few weeks
in a detention center in southern California said the difference for him was
“like the difference between heaven and earth.” He said: “At
least in California I had a better chance. I could hire a[n] attorney to
represent me. Now, here, I have no chance other than what the grace of God
gives me.”[16]

For the relatively
fortunate detainees who can afford attorneys or secure pro bono attorneys,
transfers severely disrupt the attorney-client relationship because attorneys
are rarely, if ever, informed of their clients’ transfers. Attorneys with
decades of experience told us that they had not once received prior notice from
ICE of an impending transfer. ICE often relies on detainees themselves to
notify attorneys, but the transfers arise suddenly and detainees are routinely
prevented from or are otherwise unable to make the necessary call. As a result,
attorneys have to search the online detainee locator for their clients’
new locations. Once a transferred client is found, the challenges inherent in
conducting legal representation across thousands of miles can completely sever
the attorney-client relationship. This is especially true when the same person
is transferred repeatedly. Data analyzed in this report show that 46 percent of
detainees experience two or more transfers. As one attorney said:

I have never represented someone who has not
been in more than three detention facilities. Could be El Paso, Texas, a
facility in Arizona, or they send people to Hawaii.... I have been practicing
immigration law for more than a decade. Never once have I been notified of [my
client’s] transfer. Never.[17]

Even when an attorney
is willing to attempt long distance representation, the issue is entirely subject
to the discretion of immigration judges, whose varying rules about phone or
video appearances can make it impossible for attorneys to represent their
clients. In other cases, detainees must struggle to pay for their attorneys to
fly to their new locations for court dates, or search, usually in vain, for
local counsel to represent them. Transfers create such significant obstacles to
existing attorney-client relationships that ICE’s special advisor, Dora
Schriro, recommended in her October 2009 report that detainees who have
retained counsel should not be transferred unless there are exigent health or
safety reasons.[18]

Although most
detained non-citizens have the right to a timely “bond
hearing”—a hearing examining the lawfulness of detention (a right
protected under US and human rights law)—our research shows that
ICE’s policy of transferring detainees without taking into account their
scheduled bond hearings interferes with those hearings.[19]In addition, transferred
detainees are often unable to produce the kinds of witnesses (such as family
members or employers) that are necessary to obtain bond, which means that they
usually remain in detention. In fact, data contained in this report show that
transferred immigrants spend on average three times as long in detention as
their counterparts who are never transferred.

Once they are transferred,
most non-citizens must proceed with their deportation cases in the new,
post-transfer location. Some may ask the court to change venue back to the
pre-transfer location, where evidence, witnesses, and their attorneys are more
accessible. Unfortunately, it is very difficult for a non-citizen detainee to
win a change of venue motion.

Transfers can also
have a devastating impact on detainees’ ability to defend against
deportation, despite their right to present a defense.[20] The long-distance and
multiple transfers documented in this report often make it impossible for
non-citizens to produce evidence or witnesses relevant to their defense. A
legal permanent resident from the Dominican Republic who had been living in
Philadelphia but was transferred to Texas said:

I had to call to try to get the police records
myself. It took a lot of time. The judge got mad that I kept asking for more
time. But eventually they arrived. I tried to put on the case myself. I lost.[21]

In addition, the
transfer of detainees often literally changes the law applied to them. This is
because, prior to transfers, ICE often does not serve detained immigrants with
charging documents (known as an NTAs, or Notices to Appear), thus establishing
the law and court to hear their case. While NTAs are generally supposed to be
filed within 48 hours, in practice there is no legally enforceable deadline,
illustrated by the “many detainees identified by NGOs and attorneys who
are sitting in detention for days, weeks, and sometimes months at a time
without having received an NTA.”[22]

Thus, immigrants
taken into custody in one place, for example, Pennsylvania, may spend days or
weeks there before being transferred to, for example, Texas: if ICE waits until
after transfer to file the NTA, not just the detainee, but the entire
matter—including the law applied to the detainee’s case—is
transferred to Texas. This can have a devastating impact on a detainee’s
ability to defend against deportation because the act of sending a detainee
from one jurisdiction to another can determine whether the law applied to her
case will recognize her status as a refugee or permit her to ask an immigration
judge to allow her to remain in the United States.[23]As the data analysis in
this report shows, most interstate transfers end up in states within the
jurisdiction of the Fifth Circuit Court of Appeals, which is known for its
decisions hostile to the claims of immigrants.

Transfer can pose
unique problems for detainees who are children, without a parent or custodian
to offer them guidance and protection.[24]ICE is required to send
these unaccompanied minors as soon as possible to a specialist facility run by
the Office of Refugee Resettlement (ORR) that is the least restrictive,
smallest, and most child-friendly facility available. Placing children in these
facilities is a laudable goal, and one that protects many of their rights as
children. Unfortunately, there are very few ORR facilities in the US.
Therefore, children are often transferred even further than their adult counterparts,
away from attorneys willing to represent them and from communities that might
offer them support. The delays and interference with counsel caused by these
long-distance transfers of children can cause them to lose out on important
immigration benefits available to them only as long as they are minors, such as
qualifying for Special Immigrant Juvenile Status, which would allow them to
remain legally in the United States.

Finally, the long-distance transfer of
immigrants to remote locations takes an emotional toll on detainees and their
loved ones.[25] Physical separation from family when immigrants are detained in remote
locations, impossible for relatives to reach, creates severe emotional and
psychological suffering. A sister of a transferred detainee told Human Rights
Watch:

Ever since they sent him there [to New
Mexico], it’s been a nightmare. My mother has blood pressure problems….
[His wife] has been terrified. She cries every night. And his baby asks for
him, asks for “Papa.” He kisses his photo. He starts crying as soon
as he hears his father’s voice on the phone even
though he is only one.... Last week [my brother] called to say he can’t
do it anymore. He’s going to sign the paper agreeing to his deportation. [26]

Given the serious
implications for the fair treatment of detainees created by transfers, it is
disturbing that the practice of transfers of immigrant detainees, including
multiple and long-distance transports, continues unabated. Our analysis of data
on the scope and frequency of detainee transfers follows.

IV. Data on
Detainee Transfers

Number, Gender, and
Nationality of Transferred Detainees

The data represent all 2,271,911 non-citizens held in ICE
detention between October 1, 1998 and April 30, 2010. These non-citizens
account for 2,869,323 episodes of detention, as some individuals were detained
by ICE multiple times. The data show that 1,159,568, or 40 percent of all detainees,
experienced at least one transfer during their detention (they are referred to
here as “transferred detainees”). Over 46 percent of transferred
detainees (505,787 detainees) were transferred two or more times. We found that
16.7 percent of transferred detainees experienced three or more transfers, with
over 3,400 detainees experiencing 10 or more transfers. One detainee was
transferred between facilities 66 times.

Most (1,045,620) transferred detainees were male, 113,814 were
female, and 134 were listed as unknown gender. Most transferred detainees were
from Mexico (511,945), Honduras (133,062), and Guatemala (131,691).
Shockingly, 38 were from the United States (2 females, 36 males). Why so many
of those transferred were listed as being United States nationals is beyond the
scope of our analysis. However, we note that previous analysis performed by
Human Rights Watch on ICE datasets has revealed serious problems with ICE data
management.[27]Moreover, our
recent research into the experiences of detainees with mental disabilities
revealed several troubling cases of US citizens who were kept in immigration
detention for years, and experienced multiple transfers during their time in
detention, despite the fact that their US citizenship should have negated any
ICE involvement.[28]

Transfers over Time

As shown in Figure 1, below, transfers have increased
steadily over time. Cumulatively, between the beginning of fiscal year 1999 and
April 2010, 41 percent of all detention episodes included at least one transfer
between facilities. In fiscal year 1999, 23 percent of detention episodes
included one or more transfers between facilities, but in fiscal year 2009, 52
percent of detention episodes included one or more transfers. Figure 2
illustrates the percentage of detention episodes experiencing transfer between
1998 and 2010. Table 1 shows the total number of transfer movements for each
year between 1998 and 2010.

Figure 1

Figure 2

Table 1 – Total Transfer Movements by Fiscal Year

In February 2009 ICE
wrote to Human Rights Watch to state its intention to minimize detainee
transfers. As shown in Figure 3, below, other than a peak in March 2010, which
also saw an overall increase in detention episodes, the number and rate of
detention episodes utilizing transfers has decreased slightly since ICE stated
its intention to reduce transfers in February 2009. While this may show an
informal commitment to reducing the practice, there have been no official
policy reforms aimed at reducing transfers. This very slight decrease is
therefore unlikely to indicate a continuing trend.

Figure 3

Geographical Distances Covered

The dataset contained a total of 2,040,103 movements of
detainees between detention facilities (referred to here as “transfer
movements”), corresponding to 1.07 million individual transferred
detainees.[29] Of
these transfer movements, 564,209 (27 percent) were interstate.

Perhaps the most important finding of our data analysis is
the ongoing use of long-distance transfers for detainees. As Table 2 below
shows, transfers between Pennsylvania and Texas were thethird most
frequent type of transfer used, requiring detainees to travel 1,642 miles. In
addition, large numbers of detainees were moved between North Carolina and
Georgia, between Pennsylvania and Louisiana, and between southern California
and Arizona. Such long-distance transfers cannot realistically be accomplished
without use of an airplane. The 99 longest transfer segments originated or
ended in Guam, Hawaii, Alaska, or Puerto Rico. The longest continental US
transfers occurred between Florida and Washington.

Since many detainees were transferred multiple times during
each period spent in detention, transfers are best counted and measured per
detention episode. For all transferred detainees, the average distance
transferred per detention episode was 369.81 miles. As shown in Figure 4, there
is what approximates a bell curve when examining distance as related to the
number of transfers, where distance traveled seems to peak around 10 transfers.
It is unknown why average distance moved decreases when detainees experience
more than 10 transfers. It is possible that when detainees experience
this number of transfers, they are being frequently transferred over short
distances.

Figure 4

Table 3 – Top 10 Facilities Utilizing Transfers

Originating Facility

State

Circuit

Total Transfer Actions

# of Facilities Transferring To

Total Outbound Transfers

# of Facilities Receiving From

Total Inbound Transfers

Los Custody Case Holding Facility, SAN PEDRO

CA

9th Cir.

283,218

301

150,200

251

133,018

FLORENCE STAGING FACILITY

AZ

9th Cir.

205,673

212

120,744

271

84,929

HARLINGEN STAGING FACILITY

TX

9th Cir.

179,190

181

112,890

197

66,300

MIRA LOMA DET. CENTER

CA

9th Cir.

119,118

97

56,433

94

62,685

FLORENCE SPC

AZ

9th Cir.

111,553

141

28,508

150

83,045

YORK COUNTY JAIL

PA

3rd Cir.

100,776

184

42,869

225

57,907

WILLACY COUNTY DETENTION CENTER

TX

5th Cir.

97,040

66

29,585

102

67,455

LAREDO CONTRACT DET. FACILITY

TX

5th Cir.

76,069

126

59,627

165

16,442

SOUTH TEXAS DETENTION COMPLEX

TX

5th Cir.

74,023

92

17,780

194

56,243

HOUSTON CONTRACT DET. FACILITY

TX

5th Cir.

71,456

141

25,507

314

45,949

Table 4 shows the variation between the states that received
transfers and those from which transfers originated. Only Pennsylvania, Texas,
New York, and Alabama were in the top ten states for both receiving and sending
transfers. Louisiana received 19 percent while California sent 12 percent of
interstate transfers.

Table 4 – Top Ten Originating/Receiving States for Detainee Transfers

Originating State

# of Tranfers

% of Originating Transfers

Receiving State

# of Transfers

% of Receiving Transfers

CALIFORNIA

70,002

12%

LOUISIANA

104,703

19%

PENNSYLVANIA

42,166

7%

ARIZONA

79,030

14%

NEW YORK

37,978

7%

TEXAS

77,784

14%

NORTH CAROLINA

35,299

6%

GEORGIA

48,383

9%

TEXAS

28,452

5%

PENNSYLVANIA

35,827

6%

ALABAMA

26,689

5%

WASHINGTON

27,172

5%

OREGON

23,751

4%

ALABAMA

26,765

5%

NEW JERSEY

22,923

4%

NEW MEXICO

23,158

4%

FLORIDA

22,043

4%

NEW YORK

15,646

3%

LOUISIANA

19,146

3%

ILLINOIS

15,160

3%

Intra- and Inter-Federal
Circuit Court Transfers

Most transfers (84.8 percent) were between facilities within
the jurisdiction of the same Federal Circuit Court of Appeals (which defines
the applicable law for each detainee’s case). For example, of
the 483,425 transfers originating in the Fifth Circuit, 93 percent were to
other Fifth Circuit facilities. As shown in Table 5, most circuits originate
and receive about the same percentage of transfers.

However, when examining only
interstate transfers, shown in Figure 5 below, we find the Fifth Circuit
receives, by a large margin, the most interstate transfers. Originating
circuits are color-coded.

Figure 5 – Interstate Transfers by Circuit Court

Table 6 below shows that the Fifth Circuit is the federal
circuit court district with the worst ratio in the country (510:1) for
immigration attorneys to received transferred detainees (as measured by the
number of attorneys in the circuit who are members of the American Immigration
Lawyers Association).

Facility Type

More than half of all transfers involved a facility that has
an Intergovernmental Service Agreement with ICE to hold immigration detainees. These
facilities are most commonly state or local criminal jails and prisons,
intended to house people awaiting criminal trial or persons serving criminal
punishments. After analyzing transfers by facility type, Table 7 shows that the
breakdown of facilities involved in transfers is almost identical between
originating and receiving facilities.

Table 7 – Number of Transfers by Facility Type

Length of Detention

The length of detention was determined using the dates on
which detainees entered (were booked into) and left (were booked out of)
detention. Individuals that experienced transfers were held on average over
three times as long as those that were never transferred, either measured by
the mean or median days in detention, as illustrated in Table 8.[31]

Female detainees (median: 13 days, mean: 33 days) and male
detainees (median: 14 days, mean: 39 days) were held in detention for similar
lengths of time. When examining length of detention by nationality, Table 9
shows that there were clear differences, as citizens of countries such as
Vietnam and Haiti were held for over five times as long as Mexican nationals.
This is likely a result of diplomatic and humanitarian problems causing delays
in deportations to those countries.

Table 9 – Length of Detention by Country

Deportation or Termination of Detention for Transferred Detainees

The dataset contained a variable coded as “release
reason,” which described the reason for each detainee’s departure
from immigration detention. Of the 2,271,911 detainees contained in the dataset
(both transferred and never transferred), 62 percent, or 1,413,500, were
ultimately deported.[32]

The next most common reason for the termination of detention
was voluntary departure, in which 343,557 people agreed to leave the US voluntarily.
Another 421,538 people were released to undergo their immigration court
proceedings outside of the confines of detention, either on bond, on an order
of recognizance, or on an order of supervision.[33]

Some 44,110 people had their cases terminated. Many things
can lead to termination of a case. One documented in our previous research is
the termination of the cases of people with mental disabilities who have been
transferred multiple times between detention facilities over many months or
years. Ultimately, some of these cases are terminated by judges who decide they
cannot continue with the deportation of someone with serious disabilities.

For another 33,439 detainees,
their odyssey in immigration detention did not end during the time period. This
group lacked a book-out date, or release code, or had a final movement recorded
as another transfer. Of this group, 35 percent had already
experienced at least one transfer during their current stay in immigration
detention.

As shown in Table 10, detainees
who were never transferred had more favorable reasons for their release from
detention than those who experienced one or more transfers. Among detainees who
were never transferred, 54 percent were ultimately deported, whereas 74 percent
of transferred detainees were deported. In addition, a larger percentage of
immigrant detainees who were never transferred (16 percent) were released on
orders of voluntary departure, as compared with 6 percent of those who were
transferred.

Finally, a larger percentage of
detainees who were never transferred (16 percent) as compared with those who
were transferred (14 percent) benefitted from bond or other forms of release
from detention while their immigration court proceedings were still ongoing.
The ability to remain near communities of support may help explain why more
detainees who were never transferred were able to benefit from release from
detention while their court cases were still underway. Judges may only order
release for persons who are not considered at risk of absconding from proceedings,
and this is often proved through strong ties to the community, which
transferred detainees rarely have in their post-transfer locations.

Cost Analysis

ICE provides no publicly available analysis of the savings
or costs associated with detainee transfers. There is no public accounting for
the costs of bed space in every part of the country in which ICE operates or
subcontracts for detention space. The agency also does not provide information
on the rationales for transfers in particular cases, which might help the agency
and others to better understand the savings or costs associated with its
practices.

For example, although none of the detainees interviewed for
our 2009 report Locked Up Far Away had been transferred for medical
reasons, it is certainly the case that some percentage of transfers are
completed in order to provide immigrant detainees with necessary medical care,
and that providing such care prevents illness, loss of life, and costly
lawsuits. However, there is no way to estimate these savings since the agency
does not make public, or even record in a centralized database, the reasons for
detainee transfers.[36]

Therefore, while we have no way to estimate savings
associated with transfers, we can roughly estimate some transportation costs
associated with transfers, based on information provided to Human Rights Watch
by the US Marshals Service and the IRS. Two cost estimates were used, assuming
air travel was used for transfers greater than 475 miles and ground
transportation used for transfers less than 475 miles. Further details on the
information used for these calculations can be found in the Methodology
section.

According to our estimates, the over two million transfers
that occurred between October 1998 and April 2010 cost approximately $366,832,842 in total. We believe that these transport
costs only represent a fraction of the total costs of transfers: since
transferred detainees spend on average more than three times longer in
detention than those who are not transferred, the most significant financial
costs may come from court delays and unnecessarily long periods of detention.

As illustrated in Table 11, the most costly transfer
“segment” has been from York County Jail in Pennsylvania to Harlingen
Staging Facility in Texas. Over 11,000 transfers have been sent the 1,642 miles
from Pennsylvania to Texas, costing an estimated $13.2 million. The most costly
single transfer movements have occurred between Guam and the continental
US. These transfers are nearly 8,000 miles long and likely cost several
thousand dollars per detainee. Figure 6 provides the costs of transfers
originating from each of the 50 states.

Table 11 – Most Costly Transfer Segments

Figure 6

As noted above, our conservative estimate of $366 million dollars for detainee transfers between 1998
and 2010 does not include other costs that may be associated with
transfers, such as flights made by carriers more costly than the Justice Prisoner
and Alien Transportation System (JPATS); personnel time spent on paperwork or
other administrative tasks; costs of additional court time, court delays, or
lengthened detention caused by transfers; costs associated with needless
transfers of persons who are found to be eligible for bond and therefore are
unnecessarily detained; or costs associated with duplicative medical screenings
or tests. Therefore, without better public information on ICE’s
operational budget related to transfers, it is impossible to conclude whether
transfers result in net costs or savings for the agency.

V. Methodology

The data provided in response to the original Freedom of
Information Act (FOIA) request arrived from ICE on a single data disc and
contained 5,061,411 comma-separated value records, comprising 1.16 GB of data.

ICE did not provide a data key or code book for deciphering
the data. After exploring the database, researchers determined that of the 18
included variables, five variables were either completely empty or contained
major data entry flaws. For example, the variable “Apprehension
Date” has a large percentage of entries (over 120,000 people) with the
same date of apprehension: 1/1/2001. This is clearly a result of a data
management error such as a wrongly labeled bulk import.

Researchers found that each row of data was based upon a
single action (transfer or deportation or other release) or segment of
someone’s detention, not a single person’s history. After further
analysis, researchers were able to use consistencies among several variables to
determine the ordering of the database. With the ordering of the database
known, we were able isolate individuals’ histories within ICE detention
by identifying the individual non-citizen that corresponded to each row of
data.

Our analysis relied on descriptive statistics, including
frequencies and cross-tabulations. Distance estimates were developed by
determining latitudes and longitudes of each detention facility and computing
the distance between each facility. Cost estimates were developed using data
provided by the US Marshals Service on cost per flight hour per seat for
transfers conducted by the Justice Prisoner and Alien Transportation System (JPATS).
The US Marshals Service provided six years of estimates for flights using
different sizes of airplane frames. We averaged these estimates to produce an
average per transfer cost.

The last date included in the database was May 25, 2010,
which corresponds to 64 percent of fiscal year 2010. Therefore, we developed estimates
for the remainder of FY2010. Estimated FY2010 will be labeled
“Estimated.” Because the volume of ICE actions follows an annual
pattern, with drops in enforcement actions around the fiscal year changeover,
we did not use a linear rate for estimates. Rather, estimates were developed by
using rate ratios determined using data from 2007 through 2009 in an attempt to
improve accuracy. These ratios compared the volume of ICE
detentions, transfers, and deportations from October through April to May through
September. A ratio of 1:1 would mean that the volume from October to April
would equal the volume from May to September. The averaged ratio of the
previous three fiscal years was applied to the October through April 2010 data
to estimate the aggregate sums for the remainder of 2010.

For cost estimates, two formulas were used to calculate the
approximate cost per transferred detainee:

For each ICE detainee transferred 475 miles
or more, we assumed air travel and calculated the cost as:[37]
cost = [(C / 525) x $373.88 ].

For each detainee transferred under 475
miles, the following formula was applied:[38]

Data that the Department of Homeland Security provided has
not been altered for our analysis. Any errors within the dataset,
including user-generated errors such as mislabeling in data entry, would have
occurred before the dataset was received. Because original files on each
deportee are not accessible, it is impossible to double check the data entry
for errors. Therefore the analysis uses data that ICE provided,
regardless of any potential errors.

Acknowledgments

This report was researched and written by Alison Parker,
director of the US program of Human Rights Watch. The data analysis contained
in the report was performed by Brian Root, consultant to the US program, and
Enrique Piraces, senior online strategist for Human Rights Watch. The report
was edited by Antonio Ginatta, advocacy director of the US program; Clive
Baldwin, senior legal advisor; and Danielle Haas, senior editor. Layout and
production were coordinated by Grace Choi, publications director, Fitzroy
Hepkins, mail manager, and Elena Vanko, US program associate.

Human Rights Watch is enormously grateful to Sue Long and
David Burnham at the Transactional Records Access Clearinghouse at Syracuse
University for their extraordinary expertise and professionalism in helping us
to prepare the FOIA request, and to consider best approaches in analyzing the
data. Finally, we would like to thank ICE for sending us the data we requested.

[2]For example, ICE circulated information at the Northeast Detention
Briefing, Stakeholders Meeting, indicating objectives to “consolidat[e]
and realign detention resources to keep detainees closer to families and legal
resources,” to “reduce or eliminate the transfer of detainees from
one geographic area to another due to the lack of detention resources,”
and proposed a plan to increase bedspace in Essex County, New Jersey. US
Immigration and Customs Enforcement, Northeast Detention Briefing, Stakeholders
Meeting, December 20, 2010 (on file with Human Rights Watch).

[3]For a more detailed discussion of the way that subcontracting
detention space can increase transfers, see Human Rights Watch, Locked Up
Far Away: The Transfer of Immigrants to Remote Detention Centers in the US,
December 2, 2009, http://www.hrw.org/en/reports/2009/12/02/locked-far-away-0,
p. 21

[11] Letter
from Human Rights Watch to ICE Director John Morton and American Federation of
Government Employees National President John Gage, November 3, 2010,
http://www.hrw.org/en/news/2010/11/03/us-immigration-system-should-meet-international-human-rights-obligations.

[12] US
Constitution, Sixth Amendment (“…in all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law.”).

[23] For a
detailed discussion of how transfer can alter the outcome of a particular
detainee’s deportation case, see Human Rights Watch, Locked Up Far
Away, http://www.hrw.org/en/node/86760/section/11.

[29] We are
not including within our total transfer movements the 99,687 movements
identified in the dataset as transfers, but which were actually intra-facility
movements in which the detainee never left a particular detention
facility.

[30] If two
facilities were in the same city and we could not distinguish separate
longitude and latitude values, we used a proxy distance estimate of 1 mile to
estimate the distance between facilities.

[31] The
mean is our common perception of average. The median is the value in the middle
of a data set. When there are outliers, they will drive the mean up or down but
will have less effect on the median. Both numbers tell a story regarding length
of detention. When the mean is higher than the median, it can result from a few
people that were held for a long time, thus driving the mean higher. But it can
also indicate that many people were held for a short time (i.e., 0-1 days),
which may result in a median that is lower than the mean.

[33]The ICE District Director has discretion to issue an “order
of release on recognizance or supervision,”
which releases an immigrant from detention, subject to certain conditions as
determined by the Director, such as regular reporting to the ICE district office. See Immigration and Naturalization Act, Section
236.

[34] While
there has been significant press coverage of the deaths of immigrant detainees,
including information provided by ICE itself, we were unable to locate any
public information provided by ICE nor any press reports documenting instances
of escape from immigration detention.

[35]This table only includes the most common release
reasons and excludes cases with data entry issues ( ~0.3 percent).

[36]Even if one accepts the notion that transfers for medical care
provide cost savings to the agency, it is also true that transfers for medical
care are not adequately addressing detainee medical needs, since ICE’s
failure to care for the medical needs of non-citizen detainees (resulting in
deaths in several cases) has been the subject of numerous lawsuits, press
investigations, and congressional action. See, e.g., “ACLU Sues U.S.
Immigration Officials and For-Profit Corrections Corporation Over Dangerous and
Inhumane Housing of Detainees,” ACLU press release, January 24, 2007,
http://www.aclu.org/prison/conditions/28127prs20070124.html (accessed May 11,
2011); “ACLU Sues Over Lack of Medical Treatment at San Diego Detention
Facility,” ACLU press release, June 13, 2007,
http://aclu.org/immigrants/detention/30095res20070613.html (accessed May 11,
2011); Dana Priest and Amy Goldstein, “Careless Detention: System of
Neglect,” Washington Post, May 11, 2008,
http://www.washingtonpost.com/wp-srv/nation/specials/immigration/cwc_d1p1.html
(accessed May 11, 2011); “In Custody Deaths,” New York Times,
http://topics.nytimes.com/top/reference/timestopics/subjects/i/immigration_detention_us/incustody_deaths/index.html
(accessed May 11, 2011) (collecting articles published by the New
York Times about
immigrant detainee deaths and failure to provide medical care from 2005 to
2009); U.S. House of Representatives, Committee on the Judiciary, Subcommittee
on Immigration, Citizenship, Refugees, Border Security, and International Law,
“Hearing on Problems with Immigration Detainee Medical Care,” June
4, 2008, http://judiciary.house.gov/hearings/hear_060408.html (accessed May 11,
2011).

C = distance
(over 475 miles) traveled by each detainee. The
475-mile cut off is based on a comparison between the Internal Revenue Service
(IRS) standard mileage rate for automobiles in FY 2010, which was $0.50 per
mile (http://www.irs.gov/newsroom/article/0,,id=216048,00.html), and flights on commercial carriers between a variety of
destinations, to determine at what distance a prudent
decision-maker might choose to transport detainees by plane as opposed to over
land (see table below). Some of the flight costs were based on rates that
included one stop-over, since the US Marshalls described using stopovers while
transporting immigrant detainees. Email from Steve
Blando, US Marshals Service Headquarters, to Human Rights Watch, May 30, 2008
(“On average an alien may move 1.4 times before
reaching final destination”).

FROM NEWARK, NJ TO (miles)

Over land

By commercial carrier

Philadelphia (77 miles)

$38.50

$183

Washington, D.C. (197 miles)

$98.50

$145

Richmond, VA (283 miles)

$141.50

$169

Detroit, MI (474 miles)

$237

$162

Charlotte, NC (526 miles)

$263

$173

Atlanta, GA (735 miles)

$367.50

$130

New Orleans, LA (1,163 miles)

$581.50

$199

525 = number of miles traveled per
flight hour. (The “typical cruise speed”
of a Boeing 737 at 35,000 feet is about 525 mph). The Boeing Company,
“Commercial Airplanes: 737 Family,”
http://www.boeing.com/commercial/737family/pf/pf_800tech.html (accessed May 11,
2011).

$373.88 =
price per flight hour per seat charged by Justice Prisoner and Alien Transportation Service (JPATS) of the US Marshals Service to ICE,
on average between fiscal years 2006 and 2011 and among all types of aircraft
frame. Letter from William E. Bordley, Associate General Counsel/FOIPA Officer,
US Department of Justice, United States Marshals Service, to Human Rights
Watch, regarding freedom of information/privacy act request no. 2011USMS17132,
March 3, 2011.

[38]The formula is a rough estimate based on the following assumptions.
A transfer requires the presence of at least two guards. In 2007 guards were compensated at a rate of $16
per hour. See Amendment of Solicitation/Modification of Contract between ICE
and Lincoln County, Troy, Missouri, “The purpose of this modification is
to add Article XVIII (Guard/Transportation Services) to this agreement,” August 23, 2007 (“At least two (2) qualified law
enforcement or correctional officer personnel employed by the Service Provider
under their policies, procedures and practices will perform services.”).
In addition, billing for transportation costs is based on the IRS standard mileage rate for automobiles of $0.50 per mile in FY 2010 (http://www.irs.gov/newsroom/article/0,,id=216048,00.html). Depending on the number of detainees
transported in a transfer, more than two guards may be required. In addition,
hourly rates for guards may have increased since 2007. Therefore,
we believe that these estimates for ground transportation costs are
conservative.